New York: Prospect Park West bike lane lawsuit - an update

The lawsuit seeking to eradicate the Prospect Park West bike lane may be shaky and borderline-frivolous,
but Jim Walden, the lawyer representing the bike lane opponents, seems
to have luck on his side this week. The source of his good fortune: A front page New York Times story on Bloomberg administration pilot programs. In a letter written the same day the story was published [PDF],
Walden told Brooklyn Supreme Court Judge Bert Bunyan that the piece
illustrates “precisely the issue we raised during our June 22 conference
with the Court.”

That Wednesday, Walden was in court arguing that the Prospect Park West bike lane was installed as a trial project last
summer. He has to prove to Judge Bunyan that NYC DOT presented the
redesign as an interim treatment, or else the anti-bike lane lawsuit has
no standing in court. There is a four-month statute of limitations on
the type of complaint filed by the PPW opponents, known as an Article
78, and the plaintiffs filed suit in March 2011, eight months after the
city installed the redesign. So Walden’s shot at keeping the case alive
hinges on convincing the judge that the city called the project a
“trial,” and the installation itself did not set the four-month clock
ticking. (Needless to say, we are deep in the legal weeds at this point,
and far from the core contention in the lawsuit, that DOT acted in an
“arbitrary and capricious” manner by installing the bike lane after
years of public process.)

The problem for Walden is that bike lanes are not installed on a
trial basis, and from the get-go, the city has not characterized the
Prospect Park West project as anything other than a permanent redesign.
In a sworn affidavit [PDF],
DOT bike and pedestrian director Josh Benson said he publicly corrected
the perception that the bike lane was a trial project at a Community
Board 6 hearing last year. Walden has asserted
that his “trial” theory will be borne out by documents he obtained from
Council Member Brad Lander’s office through a freedom of information
request. At the hearing last week, Judge Bunyan adjourned the case until
July 20 to give Walden more time to review those documents.

Enter the New York Times. As luck would have it, the Times ran a story on page A1 this Monday — “‘Pilot’ Label Lets Mayor’s Projects Skip City Review”
— about Bloomberg administration pilot programs, giving prominent
attention to DOT initiatives under commissioner Janette Sadik-Khan.
Curiously, the story repeatedly referred to bike lanes to illustrate its
point, even though bike lanes are all presented to community boards and
receive as much public review, if not more, as they did under previous
mayors and DOT commissioners. The article erroneously stated that
“painting bike lanes green” is a trial program.

Later that day, Walden sent a letter to Judge Bunyan, asking for the
case to be adjourned until September 7 to give him more time to submit
more FOIL requests. The primary basis for his request was the New York
Times story:

I write on behalf of Petitioners Seniors for Safety and
Neighbors for Better Bike Lanes (collectively “Petitioners”) to bring an
article from today’s New York Times, entitled “‘Pilot’ Label Lets
Mayor’s Projects Skip City Review” to the Court’s attention. The
article, a copy of which is attached, highlights precisely the issue we
raised on June 22: namely, that the City frequently presents new
programs and initiatives as “pilots” and “trials” in order to avoid
compliance with required legal processes and public reviews and to blunt
potential criticism of the projects — only to make the projects
permanent without any further review. Indeed, the article specifically
notes that Respondents, “[t]he Transportation Department and its
commissioner, Janette Sadik-Khan, have begun more than a dozen trial
programs in recent years, like allowing pop-up sidewalk cafes or
painting bike lanes green.”

Lucky or not, Walden doesn’t seem to be arguing from a position of
strength here. The Prospect Park West redesign quite clearly did not
skirt any stage of public review, with Community Board 6 having approved
it in 2009, after asking the city to study a two-way protected bike
lane in 2007. There’s no reference in Walden’s letter to any information
from the piles of documents he’s already obtained from DOT and Lander’s
office. Not even any citation in the Times story referring to the
Prospect Park West project as a “pilot.” He’s leaning quite heavily on a
misleading headline that happens to align well with his talking points,
but does not reflect the actual subject of his lawsuit at all.